DECISION

The application of the above-named defendant for a review of the sentence for Count I, Sexual Intercourse without Consent; Count III, Theft; to be committed to the custody of the Director of the Dept, of Institutions to be placed at Warm Springs or other appropriate Institution for custody, care and treatment for 20 years, imposed on June 3, 1983, was fully heard and after a careful consideration of the entire matter it is decided that: the sentence is amended in the following manner:

1. On the conviction of Sexual Intercourse Without Consent, as alleged in Count I, the sentence shall be twenty (20) years with five (5) suspended.

2. As to the conviction of Theft, set out in the sentence, shall be ten (10) years.

Both sentences shall be served concurrently.

It is the consensus of the Court, with Judge Harkin dissenting, that the sentence should be amended as indicated for the reasons that:

(1) The 20-years sentence imposed does not indicate what portion thereof was applicable to the sex crime and what portion was applicable to the crime of Theft;

(2) It appears that the Defendant did not understand that he was not entitled to “good time” on a sentence to the hospital at Warm Springs; and

(3) The Court’s majority notes the Defendant’s lack of any prior criminal record, a fact that the sentencing judge may have overlooked. The amended and adjusted sentence in the opinion of the majority seems fair and in a measure corrects an obvious misunderstanding.

DISSENTING: I would affirm the sentence of the trial court. The applicant receive a sentence consistent with his plea bargain. There is no evidence that the sentencing judge did not consider the absence of prior criminal record.

We wish to thank Jeff Payne of the Montana Defender Project for his assistance to the Defendant and to this Court.